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Footnote Suggests Broader Probe Is Needed – of CIA and DOJ

Following up on Spencer’s post, I don’t feel too sorry for Jay Bybee or John Yoo, the lead lawyers at the Justice Department’s Office of Legal Counsel who approved the CIA’s so-called “enhanced interrogation techniques.” As Spencer writes and Footnote 26 of the newly released Inspector General report makes clear, the DOJ lawyers were not given accurate or complete information about the CIA techniques, such as waterboarding.

But the point made by the CIA’s chief of the Office of Medical Services, that the use of so-called “enhanced interrogation techniques” on terror suspects under investigation and the use of those techniques on U.S. soldiers in SERE training is different is hardly a remarkable conclusion. In fact, critics have been making that point for months now. So is it really even possible that Bybee and Yoo didn’t consider the distinction? Did the lawyers really need a medical expert to tell them that repeated, persistent waterboarding, extreme sleep and food deprivation, stress positions and the range of other techniques that were used on terror suspects is different when used in the context of a real interrogation by hostile forces, than it is in military training by your own army?

Footnote 26 of the report makes the point that “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”

Maybe it’s possible that the lawyers didn’t think of that themselves. And maybe it’s possible that, as I’ve noted before, they didn’t see how these techniques would “shock the conscience” — the Supreme Court’s standard for determining when government officials have violated the Fifth Amendment’s requirement of due process.

Maybe you’d even feel sorry for the poor OLC lawyers, who were just taking the information they were given and doing what they were told. Still, it would seem that any serious prosecutor probing whether CIA interrogators broke the law would have to also ask how and why the DOJ’s lawyers advised them based on a factual scenario that seems so patently implausible.

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